Larry Downes is an industry analyst and speaker on developing business

strategies in an age of constant disruption caused
by information technology.
His books include the Business Week and New York Times business bestseller, "Unleashing the Killer App"
and "The Laws of Disruption."

Memo to Andrew McLaughlin: Read the *** Constitution

2 Comments

November 25th, 2009

In response to an earlier post on Net Neutrality, a reader asks if my “position changed since John McCain introduced his ‘Internet Freedom Act of 2009.’” That bill, introduced as the FCC was announcing its proposed Neutrality rulemaking, is only one page long. If passed, it would mean that the Commission could not “propose, promulgate, or issue any regulations regarding the Internet or IP-enabled services.”

The reader goes on: “Essentially, McCain wants to make it so FCC has zero regulatory powers of the internet. So, if COMCAST wants to block Hulu…or charge usuers [sic] extra, then they can and will. It seems all that separates us from a doomsday scenario with the internet is a Republican controlled government, which will happen eventually.”

The short answer is that the McCain bill does not change my position at all.

First of all, I doubt that the bill, or the opposing “Internet Freedom Preservation Act of 2009,” have much chance of passage. The focus of activity is clearly on the FCC’s proposed rulemaking. If that fails, or if the courts determine that the Commission doesn’t have the authority to pass neutrality rules absent new powers from Congress, than the action may shift to the legislature. If it does, I suspect something more substantive would be offered. The McCain bill seems to have been offered as a sign of unhappiness over the FCC’s rulemaking rather than as a genuine effort to pass a law.

Even if the McCain bill did pass as written, by the way, it’s not entirely correct to say that the FCC would have “zero regulatory powers of the Internet.” Even in a one-page law, McCain included a number of exceptions to the general prohibition, and the bill also makes clear that any regulations related to the Internet already in place at the time of the bill’s passage would not be superseded. If, in other words, the FCC had already enrolled the new neutrality rules before the McCain bill became law, those rules would stay in place.

But there’s a much bigger point here I want to make. The reader believes that absent the FCC’s meddling hands, we face an imminent “doomsday scenario with the Internet.” It’s true that there would be no law to stop Comcast from blocking Hulu, nor a law that would stop Comcast from charging extra to users who wanted that content. But that wouldn’t mean Comcast would or could do either of these things. Even if they did, I don’t understand the hyperbole that doing so constitutes the end of the world as we know it.

To me, the biggest hole in the neutrality-or-apocalypse argument is the idea that the best–indeed, the only–defense against corporate interference with Internet content is the federal government, and specifically the Federal Communications Commission. Often that argument comes from those who are otherwise, and rightly, skeptical of the motives or abilities of the federal bureaucracy to look out for consumer interests.

But somehow when it comes to neutrality, all of the disappointments, suspicions, and failures of government, in particular the FCC, are put aside. The government—or anyway the current administration—believes in the open network, the argument goes, so we can trust them to regulate it in our best interests.

I’m not willing to suspend my disbelief in the face of so much evidence to the contrary, visible in communications policy and everywhere else. But for those who need more evidence that the federal government is less likely to preserve the open network than the communications industry, look no farther than the White House.

As reported two days ago by the Washington Post’s Cecilia Kang, White House Deputy Technology Officer Andrew McLaughlin told attendees at a recent conference that the Obama administration is committed not only to neutrality but to global free speech, and that indeed, neutrality “underlies free speech on the Web.” The two are “intrinsically linked,” according to McLaughlin, because without neutrality, there is the possibility of censorship.

“If it bothers you that the China government does it, it should bother you when your cable company does it,” McLaughlin, whose was previously responsible for global policy for Google, was quoted as saying.

The First Amendment, in other words, ought to apply to Internet access providers, and the White House sees Net Neutrality as the mechanism for ensuring that it does.

There’s just one problem with this description of the administration’s plans: it has utterly no basis in the U.S. Constitution.

As any first-year law student (or, indeed, any reader of The Laws of Disruption) knows, the First Amendment protects citizens from interference of their speech by the government. There is no legal basis to McLaughlin’s view that it applies to private actors, whether cable companies, employers, or your mother-in-law.

Private censorship of specific content, of course, is bad. But it is not a “free speech” problem.

(McLaughlin might be excused from this gaffe by the fact that he was speaking at a conference rather than in writing. But no, the White House Office of Science and Technology Policy has since defended the comments.)

There are very good reasons why the First Amendment applies only to the government. The government is the only body that has the coercive power of the military, and the power to deprive individuals of their liberty through imprisonment. The Founding Fathers had good reason to fear interference with political speech by those with that kind of power. So under the First Amendment, you can say all you want about McLaughlin’s views. All he can do is refer you to the NSA for secret surveillance. Oops.

But there is no right to free speech that U.S. citizens or their government can assert against private actors. You have no right to proselytize your religion in the office. You cannot stage a protest on behalf of native plants in the middle of the Safeway. You don’t get to walk into the local newspaper and demand they print your version of the news on page one. Your five year old cannot practice foreign curse words in school without fear of being suspended.

As those examples suggest, extending the First Amendment to everybody to assert against everybody else would be catastrophic. Democratic society depends on a “marketplace of ideas” free of government interference. But free of private restrictions, the marketplace becomes noise and the participants a mob.

Internet access providers can, do, and should limit what their customers do in a variety of ways for a variety of reasons. They can limit the amount of shared bandwidth a customer can use at any given time. They can block applications for wireless customers that the wireless network doesn’t have the capacity to handle.

And yes, they can even decide that certain websites aren’t suitable for their customers based on whatever misguided reason they have. (Many local cable companies do in fact limit the channels their subscribers can watch based on personal morality.) Doing so would be bad business, but it would not be a violation of “free speech.”

McLaughlin has it backwards. The First Amendment protects even bad business decisions from interference by the government. “Free speech” doesn’t underlie the open network. Rather, it restricts the FCC from telling access providers what content they can or cannot promote or block.

Thank goodness it does. Because there’s absolutely no doubt what the government would do if it had that power. In the last ten years, administrations under both Republican and Democratic control have passed three different laws banning “indecent” content from appearing on the Internet. (President Clinton signed the first and worst of these, “The Communications Decency Act.”) State governments have tried even more offensive “experiments” with controlling Internet content, as I describe in Law Three, “Social Contracts in Digital Life.”

The Supreme Court rejected two of the federal laws as violations of the First Amendment; the third was narrowly upheld as a restriction on libraries accepting government funding. The FCC, meanwhile, still relishes its narrowly-allowed content control powers over broadcast television to ensure errant nipples and swear words don’t appear on live broadcasts.

It’s more than a little ironic that the White House is accusing cable companies of Chinese-style censorship for twice blocking bandwidth-hogging peer-to-peer applications. All the evidence we have is that it is the government that would have done the real damage to the free flow of information on the Internet. Would have, that is, if they hadn’t been blocked by the First Amendment.

In any case, it’s not as if all that stands between Internet users and the gaping abyss is an empowered FCC.

Who else will protect consumers from misguided or even evil corporations? How about the consumers themselves? Many would be unhappy with any significant interference with the free flow of information imposed for financial or other reasons by an Internet access providers. Believe it or not, even communications companies have to be responsive to customers sometimes.

At least for the past 200+ years of American history, most complaints and disagreements between service providers and their customers have been resolved efficiently and quickly by market forces. If consumers don’t like restrictions imposed by a service provider, they are free to find a more enlightened or more generous provider, or pay higher fees to use more resources, or work with their local municipality to implement free WiFi service.

You can even start your own ISP—and if you do, the FCC will make sure the phone company leases its entire network to you at bargain basement prices.

If the market is broken—if real censorship takes place, and consumers find they have no other choices, and structural problems exist that make it unlikely other choices will emerge—the government already has the overused and misunderstood tool of antitrust to fix it.

But before you start storming the Bastille demanding the micromanagement or nationalization of the communications industry, consider for a moment not the odd examples where the system doesn’t work but all the times when it does.

And then consider how much worse it might be if the FCC took over “enforcement” of the open network principle. The current administration might have one set of priorities about what constitutes “open,” but the rules will live on much longer than that. The FCC’s proposal is not to establish specific rules in any case, but to evaluate complaints of non-neutral behavior on a “case-by-case” basis. You know, like they do with broadcast content today. How’s that working out for us?

We don’t need “free speech” to protect us from access providers. We need it to protect us from the wolves in sheep’s clothing who claim to be working for our best interests.

[…] makes the comparison of the ability of ISP’s to block content to China’s censoring knowing full well that the government could soon have the same ability. The double standard is brilliant, and the ploy convincing to those who aren’t familiar […]

[…] makes the comparison of the ability of ISP’s to block content to China’s censoring knowing full well that the government could soon have the same ability. The double standard is brilliant, and the ploy convincing to those who aren’t familiar with […]